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Wednesday, 24 November 2010
Page: 2145


Senator FEENEY (Parliamentary Secretary for Defence) (6:25 PM) —I table a revised explanatory memorandum relating to the Health Insurance Amendment (Pathology Requests) Bill 2010 and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010

The Bill responds to the High Court of Australia’s decision in MRR v GR [2010] HCA 4 which casts doubt on certain parenting orders made under the Family Law Act 1975.

The High Court, in MRR v GR, held that a court has no power under the Family Law Act, where parents are to have equal shared parental responsibility for their child, to make an order that the child spend equal time with each parent, unless it has first found, under section 65DAA of the Act, that it is reasonably practicable for the child to spend equal time with each parent.

The Bill has two purposes.

First, it ensures that parenting arrangements under orders affected by the High Court decision continue to have effect.  Second, it streamlines procedures for orders made in the future providing for parents to equal shared parental responsibility for their child.

Creation of statutory rights and liabilities in relation to parenting orders

The first purpose is achieved by the Bill creating new statutory rights and liabilities for parents who have, on or after 1 July 2006, obtained orders, on an interim or final basis, that were made without meeting certain of the requirements under section 65DAA of the Family Law Act.

The approach taken under the Bill differs depending on whether or not the order was made with the consent of all the parties to the proceedings.

For an order made without that consent, the Bill creates rights and liabilities, where the child’s parents are to have equal shared parental responsibility, if the court or Family Court Judicial Registrar making the order did not consider the reasonable practicability of the child spending equal time, or substantial and significant time, with each parent.  These requirements arise under paragraph (b) of subsection 65DAA(1), and paragraph (d) of subsection 65DAA(2), of the Act respectively.

To avoid cost and complexity for parents who have agreed on parenting arrangements for their children, orders made with the consent of all the parties to proceedings are treated differently.

For orders made with that consent, the Bill creates rights and liabilities, where the child’s parents are to have equal shared parental responsibility, if the court or the Family Court Judicial Registrar or the Family Court or Federal Magistrates Court Registrar making the order did not consider the matters set out in subsections 65DAA(1) and (2) of the Family Law Act. 

These matters are, first, whether it is in the child’s best interests to spend equal time, or substantial and significant time, with each parent, secondly, whether those arrangements would be reasonably practicable and, finally, whether an order for the child to spend equal time, or substantial and significant time, with each parent should be made.

The requirement, when deciding to make a particular parenting order under the Family Law Act, to regard the best interests of the child as the paramount consideration, remains.

The rights and liabilities created by the Bill are declared to be the same, and always to have been the same, as if the court had considered the relevant matters under section 65DAA of the Family Law Act before making the order.

Further, any act or thing done, or omitted to be done, in relation to the rights and liabilities created by the Bill will have the same effect and consequences, and are taken to have always have had the same effect and consequences, as if done, or omitted to be done, in relation to a parenting order made under the Family Law Act.  Past acts validated will include any civil enforcement action taken to secure compliance with the order, including the imposition of sanctions under Division 13A of Part VII of the Act.

The approach taken by the Bill is based on a similar approach upheld by the High Court in R v Humby; ex parte Rooney (1973) 129 CLR 231.

To ensure that people’s rights are protected, the Bill does a number of things.

The new rights and liabilities are exercisable and enforceable, and are to be regarded as always having been exercisable and enforceable, in the same way as if they were rights or liabilities arising under a parenting order made under the Act.

Courts are given powers to deal with the new statutory rights and liabilities including a power to vary, revoke, set aside, revive or suspend them.

Appeal rights (including rights of review), including rights in relation to orders made without power, are preserved by the Bill.  These rights apply as though the original orders had been parenting orders under the Family Law Act.

Parents will be able to apply to a court for fresh parenting orders where arrangements under orders made in contested proceedings are not reasonably practicable. 

Finally, the Bill will not validate or confirm any purported conviction of a person of an offence by a court on the basis that a parenting order was a valid order.

These measures will provide certainty for families by removing doubt about the status of the rights and liabilities attaching to parenting orders that may be affected by the High Court’s decision.  

Consent orders in future proceedings

The second purpose of the Bill is to amend the Family Law Act to provide that courts, in future proceedings, may, but are not required to, consider the matters set out in subsections 65DAA(1) and (2) of that Act before making an order, with the consent of all the parties to the proceedings, providing for parents to have equal shared parental responsibility for their child. 

This amendment will ensure that appropriate weight is given to parenting arrangements agreed by parents.

It reflects the position taken under the Family Law Act, since 1996, in relation to whether or not the court, when deciding whether to make a parenting order with consent, needs to consider each of the matters, currently set out in subsections 60CC(2) and (3) of the Act, in determining what is in the child’s best interests.


Health Insurance Amendment (Pathology Requests) Bill 2010

The Health Insurance Amendment (Pathology Requests) Bill 2010 will improve patient choice of pathology services, and encourage providers to compete on price and quality of service.

Currently the Health Insurance Act 1973 requires that, in most cases, in order for a Medicare benefit to be payable for a pathology service rendered by or on behalf of an approved pathology practitioner, a request for the service must be made to that particular pathology practitioner or the approved pathology authority at which they work. This means that a patient is effectively required to take a completed request form to the approved pathology practitioner or authority named on the form. This restriction does not apply to other diagnostic services that attract Medicare benefits.

This Bill removes this restriction so that, while there will still be a legislative requirement for a request for a pathology service to be made, there will no longer be a requirement that the request be made to a particular approved pathology practitioner or authority. This legislative change will allow patients to take a pathology request to an approved pathology practitioner or authority of their choice and will encourage pathology providers to compete on price and convenience for patients.

The Government supports a patient’s right to choose their pathology provider, just as they are entitled to choose their own GP or any other medical practitioner.

Medical practitioners who request pathology services will still be free to make recommendations to patients about which pathology provider they feel is best suited to their needs. Feedback from requesters has shown that there are often valid clinical reasons for recommending a particular pathology provider over another.  The Government recognizes the importance of the doctor patient relationship and will continue to encourage medical practitioners to discuss with patients options for all aspects of their treatment, including pathology services.

In the case of diagnostic imaging requests, patients already have the option of taking their request form to any provider, not just the one named on the request form. These changes to the Health Insurance Act merely bring the arrangements for pathology requests in line with those for other diagnostic services.

The Senate Community Affairs Legislation Committee reviewed the Bill with regard to any potential impact on medical practice and in May 2010 recommended to the Senate that it be passed in its current form.

The amendments will take effect from the day after Royal Assent.

The Government will also make changes to relevant regulations prior to twelve months after the date of commencement to require that requests for pathology services include a clear and understandable statement, which is obviously positioned, making patients aware that requests can be taken to any approved pathology practitioner or authority.

Pathology providers will be able to continue to produce ‘branded’ request forms (that include the company logo and address) and to provide these to requesting medical practitioners. These may include a list of the locations of that provider’s collection centres. They will, however, be required from twelve months after the date of commencement to include on their request forms a clear and understandable statement, which is obviously positioned, making patients aware that these forms can be taken to any approved pathology practitioner or approved pathology authority.

Options for the wording of this statement was one of a range of implementation issues discussed with requesters, providers and consumers of pathology services as part of the stakeholder consultation process conducted by my Department.

Informed patient choice is a key element of quality health care. This amendment will ensure that patients have a right to choose their pathology provider and are made aware of that fact, leading to increased competition aetter service among providers.

Debate (on motion by Senator Feeney) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.